Cheney Plan Exempts CIA From Bill Barring Abuse of Detainees

By R. Jeffrey Smith and Josh White
Washington Post Staff Writers
Tuesday, October 25, 2005; A01

The Bush administration has proposed exempting employees of the Central Intelligence Agency from a legislative measure endorsed earlier this month by 90 members of the Senate that would bar cruel and degrading treatment of any prisoners in U.S. custody.

The proposal, which two sources said Vice President Cheney handed last Thursday to Sen. John McCain (R-Ariz.) in the company of CIA Director Porter J. Goss, states that the measure barring inhumane treatment shall not apply to counterterrorism operations conducted abroad or to operations conducted by "an element of the United States government" other than the Defense Department.

Although most detainees in U.S. custody in the war on terrorism are held by the U.S. military, the CIA is said by former intelligence officials and others to be holding several dozen detainees of particular intelligence interest at locations overseas -- including senior al Qaeda figures Khalid Sheikh Mohammed and Abu Zubaida.

Cheney's proposal is drafted in such a way that the exemption from the rule barring ill treatment could require a presidential finding that "such operations are vital to the protection of the United States or its citizens from terrorist attack." But the precise applicability of this section is not clear, and none of those involved in last week's discussions would discuss it openly yesterday.

McCain, the principal sponsor of the legislation, rejected the proposed exemption at the meeting with Cheney, according to a government source who spoke without authorization and on the condition of anonymity. McCain spokeswoman Eileen McMenamin declined to comment. But the exemption has been assailed by human rights experts critical of the administration's handling of detainees in Iraq and Afghanistan.

"This is the first time they've said explicitly that the intelligence community should be allowed to treat prisoners inhumanely," said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "In the past, they've only said that the law does not forbid inhumane treatment." Now, he said, the administration is saying more concretely that it cannot be forbidden.

The provision in question -- which the Senate on Oct. 5 voted 90 to 9 to attach to its version of the pending defense appropriations bill over the administration's opposition -- essentially proscribes harsh treatment of any detainees in U.S. custody or control anywhere in the world. It was specifically drafted to close what its backers say is a loophole in the administration's policy of generally barring torture, namely its legal contention that these constraints do not apply to treatment of foreigners on foreign soil.

The House version of the appropriations bill contains no similar provision on detainee treatment, and lawmakers are to meet later this week to begin reconciling the conflict.

Cheney's meeting with McCain last week was his third attempt to persuade the lawmaker, a former prisoner of war in Vietnam, to accept a less broad legislative bar against inhumane treatment. Cheney spokeswoman Lea Anne McBride declined to comment, saying, "the vice president does not discuss private conversations that he has with members [of Congress] . . . or information that may be exchanged with members."

She added that the intent of such meetings is usually "to build consensus on legislative issues, still in the policymaking process." CIA spokeswoman Jennifer Millerwise Dyck, a former Cheney aide, said the agency does not comment on the director's meetings.

Other sources said the vice president is also still fighting a second provision of the Senate-passed legislation, which requires that detainees in Defense Department custody anywhere in the world may be subjected only to interrogation techniques approved and listed in the Army's Field Manual.

The manual is undergoing revision, and McCain has contended that this process will give the military sufficient flexibility to respond to terrorist countermeasures. But Cheney's office has argued in talking points being circulated on Capitol Hill that the manual "will be inapplicable in certain instances" because of such countermeasures.

The CIA has been implicated in a number of alleged abuses in Iraq and has been linked to at least a few cases in which detainees have died during interrogations at separate military bases throughout the country. So far, no CIA operatives have been charged in connection with the abuse, although a single CIA contract employee is on trial for involvement in the death of an Afghanistan detainee, and sources have indicated that a grand jury may be looking at other allegations involving the CIA.

A report by the CIA inspector general's office on the agency's role in the handling of detainees is classified. It has been shown to the Justice Department and briefed only to a few lawmakers. Several military investigations have already blamed the CIA for leading a program in Iraq that essentially made detainees disappear within the military's detention system with no record of their captivity -- a practice that human rights groups have said violated international laws of war.

In a particularly infamous case, a detainee at Abu Ghraib prison in Iraq named Manadel Jamadi was photographed after his death, packed in ice, by military police soldiers at the facility. He allegedly died in a shower room during interrogation by CIA officers after being brought there by Navy Seal team members. A high-level CIA operative allegedly helped conceal Jamadi's death after Army officers found his body.

But the extent of the CIA's direct involvement in torture is unclear, partly because the agency has been reluctant to help the Defense Department's many investigations into abuse and has refused to provide Army officers with documents deemed relevant to the probes.

Staff writer Dana Priest contributed to this report.

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Torture of Iraqi POWs
Because We Respect Human Rights

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New Abuse Photos Could Spark Riots, US General Warns

by William Fisher

NEW YORK - Civil libertarians and the Pentagon appear headed for yet another trainwreck in the ongoing dispute over the so-called second batch of photos from Abu Ghraib prison in Iraq.

In response to a lawsuit by the American Civil Liberties Union (ACLU), the Centre for Constitutional Rights (CCR), and a number of medical and veterans groups demanding release of 87 new videos and photographs depicting detainee abuse at the now infamous prison, the chairman of the Joint Chiefs of Staff, Gen. Richard Myers, said the release would result in ”riots, violence and attacks by insurgents.”

In court papers filed to contest the lawsuit, Gen. Myers said he consulted with Gen. John P. Abizaid, head of the United States Central Command, and Gen. George W. Casey Jr., the commander of the U.S. forces in Iraq. Both officers also opposed the release, Gen. Myers said.

He believes the release of the photos would ”incite public opinion in the Muslim world and put the lives of American soldiers and officials at risk,” according to documents unsealed in federal court in New York.

”The situation on the ground in Iraq is dynamic and dangerous,” Myers added, with 70 insurgent attacks daily. He also said there was evidence that the Taliban was gaining ground because of popular discontent in Afghanistan.

Gen. Myers cited the violence that erupted in some Muslim countries in May after Newsweek published an item, which it later retracted, saying that a Koran had been thrown in a toilet in the United States detention center in Guantánamo Bay, Cuba. He also said the images could fuel terrorist disinformation campaigns.

”It is probable that Al Qaeda and other groups will seize upon these images and videos as grist for their propaganda mill, which will result in, besides violent attacks, increased terrorist recruitment, continued financial support and exacerbation of tensions between Iraqi and Afghani populaces and U.S. and coalition forces,” he said.

The 87 ”new” photos and four videotapes taken at Abu Ghraib were among those turned over to Army investigators last year by Specialist Joseph M. Darby, a reservist who was posted at the prison.

In legal papers unsealed last week, the ACLU and its allied groups urged the court to order the release of photographs and videos, and also asked the court to reject the government's attempt to file some of its legal arguments in secret.

It said that until the first photos of detainee abuse at Abu Ghraib were made public in April 2004, the government had consistently denied that any wrongdoing had taken place, despite news reports to the contrary. Since then, the ACLU has obtained, through a court order, more than 60,000 pages of government documents regarding torture and abuse of detainees.

At a court hearing on Monday, the judge said he generally ruled in favour of public disclosure and ordered the government to reveal some redacted parts of its argument for blocking the release of pictures and videotapes.

U.S. District Judge Alvin K. Hellerstein said his rulings pertained to arguments by Gen. Myers. ”By and large, I ruled in favour of public disclosure,” he said.

The judge said he believes photographs ”are the best evidence the public can have of what occurred” at the prison.

He scheduled arguments on the question of whether the photographs and videos should be released for Aug. 30, saying a speedy decision is important so the public's right to know isn't compromised.

The ACLU has also called for an independent counsel with subpoena power to investigate the torture scandal, including the role of senior policymakers, and has filed a separate lawsuit to hold Defence Secretary Donald Rumsfeld and high-ranking military officers accountable.

Reed Brody, head of international programmes for Human Rights Watch (HRW), told IPS, ”The problem is not the photos but the policy of abuse. The release of the first photos last year led us to the revelations that senior U.S. officials had secretly sidelined the Geneva Conventions, re-defined 'torture', and approved illegal coercive interrogation methods.”

”The release of new photos showing crimes perpetrated on detainees could create new impetus to expose and prosecute those ultimately responsible and hopefully prevent these practices from being repeated.”

Michael Ratner, president of the Centre for Constitutional Rights, noted that, ”The administration's response to the release of the photos is to kill the messenger, rather then to investigate and prosecute the real culprits: Secretary of Defence Rumsfeld, Attorney-General Alberto Gonzales, Generals Miller and Sanchez, and others.”

He agreed that ”the photos will be upsetting to anyone who cares about humane treatment and particularly to those in the Muslim world, but the photos reflect the reality of the type of treatment detainees were subjected to.”

”Rather than suppress the best evidence of widespread torture of Muslim detainees, the Administration ought to launch a fully independent investigation and ought to see that an independent prosecutor is appointed,” Ratner told IPS.

He added, ”Ensuring accountability for the torture conspiracy is the best way of demonstrating to the Muslim world that this outrage has come to an end and will not be repeated.”

The government initially objected to the release of the images on the grounds that it would violate the Geneva Conventions rights of the detainees depicted in the images. That concern was addressed by court order on Jun. 1 directing the government to redact any personally identifying characteristics from the images. The ACLU did not object to those redactions.

The ACLU said the government has repeatedly taken the position that the detainees themselves cannot rely on the Geneva Conventions in legal proceedings to challenge their mistreatment by U.S. personnel.

In a court declaration, former U.S. Army Colonel Michael E. Pheneger, a retired military intelligence expert, responded to the government's ”cause-and-effect” argument that release of the images would spark violence abroad.

”Our enemies seek to prevent the United States from achieving its objectives in the Middle East,” he said. ”They do not need specific provocations to justify their actions.”

Attacks by insurgents ”will continue regardless of whether the photos and tapes are released,” he added.

The case arose from a lawsuit filed under the Freedom of Information Act (FOIA) by the ACLU, the Centre for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace.

© 2005 IPS - Inter Press Service

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